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2001 DIGILAW 1623 (MAD)

Beem Singh and another. v. S. Ramajayam.

2001-12-10

M.KARPAGAVINAYAGAM

body2001
ORDER: A private complaint under Sec. 500, I.P.C. was filed by the complainant Mr. Ramajayam, the respondent herein against five accused including the petitioners 1 and 2 before II Metropolitan Magistrate Court, Egmore. All the five accused filed a petition to drop the proceedings as against them raising several grounds. The trial Court after hearing the counsel for the parties, dismissed the same. Aggrieved by that, the petitioners (A-1 and A-2) have preferred this revision. 2. According to the complainant, in a proceeding before the three forums challenging the order of retrenchment of the complainant by the management of the accused, a detailed counter statement was filed by them on 29.7.1989, 6.1.1994 and 17.2.1995 containing defamatory allegations against the complainant and therefore, the accused persons who are connected with the management are liable to be punished for the offence under Sec. 500, I.P.C. 3. According to the petitioners/accused 1 and 2, the proceedings arising out of the said complainant are to be dropped on three grounds: (1) The complaint is barred by limitation. (2) The accused are protected under Exceptions 8 and 9 to Sec.499,I.P.C. (3) The counter dated 17.2.1995 being a third publication was filed by A-3 alone and not by others. There are no specific allegations against A-1 and A-2. The other accused namely A-4 and A-5 have nothing to do with either of the publications nor connected with the management. 4. The trial Court accepting the contention of the complainant that these factors could be dealt with only during the course of trial, rejected the prayer of the petitioners and other accused. 5. While assailing the impugned order, the learned counsel for the petitioners would elaborate these three points and cited several authorities to buttress his submissions. 6. With equal vehemence, the complainant who is the party-in-person, would contend that the revision could not be entertained, as the impugned order is perfectly valid in law. 7. The counsel for the petitioners as well as the complainant/party-in-person in addition to their oral submissions have filed written submissions. 8. In his context, it is noticed that though the complainant is represented by an Advocate before the lower Court, he has not chosen to engage a Lawyer before this Court on his behalf. 9. 7. The counsel for the petitioners as well as the complainant/party-in-person in addition to their oral submissions have filed written submissions. 8. In his context, it is noticed that though the complainant is represented by an Advocate before the lower Court, he has not chosen to engage a Lawyer before this Court on his behalf. 9. In view of the legal questions raised before this Court by the counsel for the petitioners through oral submissions and written submissions, this Court thought it fit to nominate Mr. Malarvannan as amicus curiae to assist the Court with reference to both legal and factual aspects. Accordingly, Mr. Malarvannan made oral submission and also filed typed set containing various citations both for and against. 10. I have carefully considered the submissions made by the counsel for the petitioners, the party-in-person and the amicus curiae. I have also gone through the revision grounds, affidavit filed by both the parties, written arguments and the various citations submitted by the parties. 11. Before going to the questions involved, let us go into the contents of the complaint in question and the sworn statement recorded thereon. The gist of the same is as follows: "(i) The complainant was working as a Journalist in the newspaper "Thina Thanthi" from the year 1962 for 19 years i.e. from 30.10.1962 to 9.6.1981. In the month of June, 1980, he was illegally transferred from Tirunvelveli "Thina Thanthi" to Coimbatore "Thina Thanthi" as a punishment. Since the salary arrears were not paid in time, on 9.6.1981, the complainant met the second accused, namely Director and Controller of "Thina Thanthi" at Madras and demanded the legitimate wage raise. The employer (A-2) demanded his resignation. As he refused to give the same, he was retrenched on 9.6.1981. (ii) On 10.6.1981, he was appointed as Feature Editor of "Varandhira Rani" a magazine controlled by A-2. Even there, the salary, was not paid regularly. The complainant requested to post him back to "Thina Thanthi". On 1.7.1984, the complainant was appointed as Editor of "Rani Comics". Thus, he was working both as Editor of "Rani Comics" and Feature Editor of "Varandhira Rani". He demanded more salary, as he was the full time Editor of "Rani Comics", (iii) On 15.3.1988, resignation letter was obtained from him out of coercion from the job of Feature Editor of "Varandhira Rani". Thus, he was working both as Editor of "Rani Comics" and Feature Editor of "Varandhira Rani". He demanded more salary, as he was the full time Editor of "Rani Comics", (iii) On 15.3.1988, resignation letter was obtained from him out of coercion from the job of Feature Editor of "Varandhira Rani". On 16.3.1988, he was informed that his services as Editor of "Rani Comics" were terminated. (iv) Aggrieved by this, he sent a representation to the President of India. Consequently an enquiry was conducted by the Inspector under the Working Journalists and other Newspapers Employees Act, 1955. In that enquiry, T.R. Beem Singh, the Personnel Manager of "Thina Thanthi" filed a detailed counter on 29.7.1989. In that counter statement, he made defamatory statement against the complainant. Due to such statement, the enquiry was ended in failure. (v) Thereafter, the complainant raised an industrial dispute before the Labour Officer. During the conciliation proceedings before the Labour Officer, A-3 K.R. Kottalamuthu, the Manager of "Thina Thanthi" Newspaper filed the very same document dated 29.7.1989 as an exhibit on 6.1.1994. At the end, the conciliation also failed. (vii) Then, the complainant went to the Labour Court and filed a petition against the illegal retrenchment. During the proceedings, A-3 K.R. Kottalamuthu, the Manager on 17.2.1995 filed the very same document dated 29.7.1989 containing defamatory allegations against the complainant. (viii) On 4.12.1996, the complainant sent a notice to all the five accused asking them to tender unconditional apology for making defamatory allegations contained in the counter filed before forums. There was no reply. (ix) On 7.4.1997, the said document was marked as Ex.M-1 before the Labour Court. The said document, which was filed before the various forums on different dates, would contain defamatory allegations against the complainant and since the publication of the same lowered his reputation and image in the estimation of others, all the five accused are liable to be punished for the offences under Secs.500 read with 34 and 120-B, I.P.C." 12. The lower Court records which have been summoned by this Court would reveal that the complaint was filed before the trial Court on 25.3.1998 and the sworn statement was recorded from the complainant on 25.6.1998 and the cognizance was taken against the accused only under Sec. 500,I.P.C. On receipt of summons, A-1 to A-5 appeared before the lower Court and received the copies of the complaint. Thereafter, all the five accused filed a petition before the trial Court on 15.7.1999 requesting the Court to recall the issuance of summons on the ground that there is no prima facie case against them for further proceeding under Sec. 500, I.P.C. As noted above, this application in M.P.No.3627 of 1999 was ultimately dismissed by the trial Court on 19.10.2000. This order is the subject matter of the revision before this Court. 13. Now we shall consider the merits of the contentions urged by the counsel for the petitioners one by one. 14. The first contention would relate to the period of limitation and the bar on cognizance. According to the counsel for the petitioners, the detailed counter containing the imputations was filed on 29.7.1989 before the Inspector under the Working Journalists and other Newspapers Employees Act and the same copy was filed on 17.2.1995 before the Labour Court. These offences were committed in the years 1989, 1994 and 1995. In respect of these offences, the complaint must have been filed and the cognizance ought to have been taken within three years from the date of commission of the offence. In this case, cognizance was taken on 25.6.1998 after the expiry of limitation of three years as contemplated under Sec.468, Crl.P.C. 15. With reference to this submission, it is pointed out by both the party-in-person through the written submission and the citations submitted by him and also by the amicus curiae that this contention cannot be accepted, in view of the fact that the offence is a continuing offence and as such, Sec.468, Crl.P.C. would not apply. 16. On the other hand, it has been brought to my notice through S.M. Vikal v. A.L. Chopra, A.I.R. 1978 S.C. 986, wherein it has been observed that a complaint under Sec. 500,I.P.C. for defamation will be barred if filed three years after the commission of the offence. 17. On the contrary, in the citation Chandrasekhara v. Karthikeyan, A.I.R. 1964 Ker. 277 submitted by the other side, it has been observed by the Kerala High Court that every repetition of a libel is a new libel and the publisher of a libel is clearly responsible irrespective of the fact whether he is the originator of the libel or is merely repeating it. 18. 277 submitted by the other side, it has been observed by the Kerala High Court that every repetition of a libel is a new libel and the publisher of a libel is clearly responsible irrespective of the fact whether he is the originator of the libel or is merely repeating it. 18. Though it is contended that the offences committed by filing the same statement containing defamatory imputations against the complainant are distinct offences, the question as to whether these offences were already committed or the offences are continuing whenever the said statement was filed before the forum cannot be decided, at this stage. 19. In M.N. Damani v. S.K. Sinha and others, (2001)3 Supreme 647 , Hon’ble Justice Shivaraj V. Patil on behalf of the Supreme Court Bench would clearly observe that whether the offence under Sec. 500, I.P.C. is a continuing one or not and whether the date of the commission of offence could be taken as the one mentioned in the complaint are not the matters to be examined at this stage, before the commencement of trial. 20. Furthermore, in the sworn statement, the complainant would specifically state that the said document containing the imputations against the complainant was filed and exhibited as Ex.M-1 on 7.4.1997. Therefore, the questions as to when actually the offence was committed and whether the date of the commission of the offence could be taken as the one mentioned in the complaint or sworn statement all are to be considered by the trial Court. As such, the first submission, in my view, would have to fail. 21. Regarding the second submission, it is contented that the three publications by filing the detailed counter were made in the legal proceedings and since those proceedings have been decided against the complainant, the good faith shall be presumed in the petitioners’ favour, as the said detailed reply was filed only for the purpose of protecting their interests and as such, the petitioners would fall under Exception 9 to Sec.499, I.P.C. To substantiate this plea, the learned counsel for the petitioners would cite Rajendra Kumar Sitaram Pande and others v. Uttam and another, (1999)1 M.W.N. (Crl.) 134, wherein the Supreme Court quashed issuance of process by the Judicial Magistrate by virtue of Exception 8 to Sec.499, I.P.C. 22. This again would not be of any use for the petitioner, in view of the clear dictum laid down by the Supreme Court in M.N. Damani v. S.K. Sinha, (2001)3 Supreme 647 , wherein it is held as follows: “It is for the respondent to plead that he was protected under Ninth Exception to Sec.499 of the Penal Code. The burden, such as it is, to prove that his case would come within that exception is on him. The ingredients of the Ninth Exception are that (1) the imputation must be made in good faith, and (2) the imputation must be for the protection of the interests of the person making it or of any other person or for the public good.” 23. It is further stated in the said decision that several questions arise for consideration if the 9th Exception is to be applied to the facts of the case and that the questions that may arise for consideration depends on the stand taken by the accused at the trial and how the complainant proposes to demolish the defence and that stage for deciding these questions had not arrived at the stage of issuing process. 24. According to the Supreme Court, the aspect of good faith as contemplated in the 9th Exception is a question of fact and a matter for evidence and so, the trial must go on. 25. The decision cited by the counsel for the petitioners namely, Rajendra Kumar Sitaram Pande v. Uttam, (1999)1 M.W.N. (Crl.) 134, would not be applicable to the present case because is the said case, while the Judicial Magistrate conducted enquiry under Sec. 202, Crl.P.C, the learned Magistrate called for the report from the authority concerned to whom the document containing the defamatory imputations was filed and on that basis, the Court held that the issuance of process is travesty of justice in the light of the exception 8 to Sec.499, I.P.C. This is to say, the view of the Supreme Court is that the Magistrate should have recalled the process and dropped the proceedings on the basis of the report filed by the authority concerned which is available before the Court, which is in favour of the accused even before the issuance of process. 26. That is not the case here. 26. That is not the case here. Though according to the petitioners, the enquiry before all the three authorities including the Labour Court being the last authority was over in favour of the petitioners, those documents are not before the trial Court and as such, that cannot be decided at this stage, especially when it is not the case of the complainant that the enquiry before the Labour Court also ended in failure. 27. In view of what is stated above, this contention also is liable to dealt with by the trial Court after trial is over and resultantly, this contention also would not deserve acceptance. 28. Let us now go to the third submission. 29. With reference to the third submission, it is argued that the detailed counter was filed only by A-3 and as such, the so-called publication cannot be said to be made by the other accused and as such, the petitioners and other accused would not be liable to be proceeded with. 30. In respect of this point, the counsel for the petitioners as well as the party-in-person and the amicus curiae would cite number of authorities. Those are as follows: (1) M.N. Damani v. S.K. Sinha and others, (2001)3 Supreme 647 ; (2) Rajendra Kumar Sitaram Pande v. Uttam, (1999)1 M.W.N. (Crl.) 134; (3) Thozhilalar Munetra Sanga Peravai Kuzhu represented by its Secretary Mr.K. Ramesh Raja, Ennore Foundaries Limited, Ennore, Chennai and others v. R. Anbazhagan, General Secretary, Ennore Foundaries Employees Union, (1999)1 M.W.N. (Crl.) 289; (4) P. Karthikeyan v. S. Ananthanarayanan, (1997) 2 M.W.N. (Crl.) 312; (5) K.M. Mathew v. State of Kerala, A.I.R. 1992 S.C. 2206; (6) John Thomas v. Dr.K. Jagadeesan, 2001 S.C.C. (Crl.) 974; (7) Shatrughna Prasad Sinha v. Rajabhau Surajmal Rathi and others, (1997)1 M. W.N. (Crl.) 279; (8) Pran Krishto Ghosh v. Giribala Dassi, Crl.L.J. Reports Vol. 1122. 31. The counsel for the parties including amicus curiae would admit that it is settled legal position that a Court has to read the complaint as a whole and find out whether the allegations disclosed constitute an offence under Sec.499, I.P.C. triable by the Judicial Magistrate. 32. I have carefully considered the rival contentions in respect of the above aspect. 33. The counsel for the parties including amicus curiae would admit that it is settled legal position that a Court has to read the complaint as a whole and find out whether the allegations disclosed constitute an offence under Sec.499, I.P.C. triable by the Judicial Magistrate. 32. I have carefully considered the rival contentions in respect of the above aspect. 33. Sec.499, I.P.C. provides thus: “Defamation: Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or, publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereafter excepted, to defame that person.” 34. A reading of the above section would reveal that whoever publishes any imputation concerning any person with the intention to harm or with knowledge that such imputation will harm the reputation of the said person, he commits defamation. 35. This Section requires the intention or knowledge of the person to defame the complainant. In other words, it must be specifically stated in the complaint or in the sworn statement that the said person had knowledge of the contents of the publication and published the same with intention to defame the person. 36. Unless there are positive averments in the complaint of knowledge of the objectionable character of the matter, it cannot be stated that the Magistrate was justified in issuing process against those persons. 37. As laid down in K.M. Mathew v. State of Kerala, A.I.R. 1992 S.C. 2206, when the accused enters appearance in response to the summons in a summary proceeding relating to the offence under Sec. 500, I.P.C., the Judicial Magistrate has to take proceedings under Chapter XX of the Code. But, the need to try the accused arises when there is allegation in the complaint that the accused has committed the said offence. If there is no allegation in the complaint involving a particular accused in the commission of the offence, it is implied that the Magistrate has no jurisdiction to proceed against him. 38. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. If there is no allegation in the complaint involving a particular accused in the commission of the offence, it is implied that the Magistrate has no jurisdiction to proceed against him. 38. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there are no possible allegations against the accused in respect of the offence for which he could be tried. 39. The law laid down by the Supreme Court in the above decision to the effect that the fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose the offence alleged against the accused, cannot be disputed. 40. In the light of the above legal situation, let us now analyse the point raised by the counsel for the petitioners. 41. On a careful perusal of the complaint and sworn statement, it is clear that the counter statement signed by A-1 T.R. Beem Singh was filed by him on 29.7.1989 before the Inspector under the Working Journalists Act and the same copy was filed by A-3 K.R. Kottalamuthu during conciliation proceedings on 6.1.1994 and the very same copy of the statement was filed by A-3 on 17.2.1995 before the Labour Court. 42. As a matter of fact, the perusal of the said document containing defamatory imputations which has been filed along with the complaint would reveal that the same was signed by A-1, the Personnel Manager and at the bottom, it is mentioned as copy submitted to Iyah/Madras. According to the complainant, it would refer to A-2. 43. It is the specific case of the complainant both in the complaint and in the sworn statement that the statement signed by A-1 was filed by A-3 before the Labour Officer in the Labour Court. Thus, it is clear that there are no positive allegations as against either A-2 or A-4 and A-5 with reference to the knowledge of the contents of the statement about the publication. 44. It is merely mentioned that but for the approval of A-2, these statements would not have been filed by A-1. Thus, it is clear that there are no positive allegations as against either A-2 or A-4 and A-5 with reference to the knowledge of the contents of the statement about the publication. 44. It is merely mentioned that but for the approval of A-2, these statements would not have been filed by A-1. This statement would not be construed to be positive averment against A-2 with reference to the knowledge of the imputation. Similarly, there is no allegation in respect of A-4 and A-5 also with regard to the offence under Sec. 500,I.P.C. 45. Though it is mentioned in the complaint in regard to the offence under Secs. 34 and 120-B as against all the accused, as noted above, the complaint was not taken on file in respect of those offences. On the other hand, the complaint was taken on file only for the offence under Sec. 500, I.P.C., namely the publication of the defamatory imputations. Admittedly, this was done only by A-1 and A-3. 46. Thus it is obvious that against the other accused, namely A-2, A-4 and A-5 no positive averments were made with regard to the knowledge of the contents of the publication and the publication of the same with intention to defame the complainant. 47. As held by the Supreme Court in Rajendra Kumar’s case, (1999)1 M.W.N. (Crl.) 134, in the absence of the details in the complaint or in the sworn statement, the second petitioner (A-2) as well as A-4 and A-5 cannot be summoned to the Court to face the proceedings under Sec. 500, I.P.C. 48. In the light of the above discussion, in my considered opinion, this is a fit case where the process issued to A-2, A-4 and A-5 are to be recalled and the proceedings against them are to be dropped. Consequently, the impugned order is set aside in respect of the second petitioner and also the other accused, namely A-4 and A-5, as the point held in favour of A-2 would apply to A-4 and A-5 also, though they have not filed revision against the impugned order, However, the revision by A-1 is liable to dismissed. 49. To sum up: The proceedings as against A-1 and A-3 have to go on and the proceedings as against A-2, A-4 and A-5 are liable to be dropped. 50. With the above observations, the revision is partly allowed. Crl.M.P. Nos. 49. To sum up: The proceedings as against A-1 and A-3 have to go on and the proceedings as against A-2, A-4 and A-5 are liable to be dropped. 50. With the above observations, the revision is partly allowed. Crl.M.P. Nos. 169 and 4274 of 2001 are closed. 51. The observations made in this order are only confined to the disposal of the revision. Therefore, the trial Court shall dispose of the matter as against the accused 1 and 3 uninfluenced by any of the observations made above. 52. Before parting with this case, this Court places on record its full appreciation to the valuable assistance rendered by Mr.Malarvannan, the amicus curiae.